Last updated: 20 September 2022
The legal framework on the regime of constructions that can be built on agricultural land located outside the built-up areas, and more specifically for installing renewable energy equipment on such lands, was modified this year in July, under the Law n° 254/2022, published in Official Gazette n° 736 of July 21, 2022, and the Law n° 262/2022, published in Official Gazette n° 744 of July 25, 2022, amending the Law n° 18/1991 on the land fund and the Law No. 50/1991 on construction works authorisation.
Thus, in addition to the provisions of the Law 18/1991 allowing the building of certain installations within some specific investment objectives on such agricultural land located outside the build-up area, the Laws no. 254/2022 and n° 262/2022 henceforth authorize the installation of specific equipment for the production of electrical energy from renewable sources.
There follows an overview of the latest regulations on investments for the production of energy from renewable sources.
What types of investments ?
Making an exception to the rule prohibiting the construction of buildings of any kind on agricultural land located outside the build-up area, on land subject to land development works and on land planted with vines and orchards, the new legal provisions authorize such constructions when they fall within the framework of investments for the production of electrical energy from renewable sources.
These can be solar, wind, biomass, biofuel and biogas generation capacities, storage capacities, etc.
These investments can be located on agricultural land located outside the build-up area, of class III, IV and V, having the category of use of arable land, pastures, vineyards or orchards, as well as on land subject to land development works of a maximum area of 50 ha.
Installing renewable energy equipment on agricultural land located outside the build-up area of class 1 and 2 is possible only if it is aimed at producing energy for self-use.
How to do it ?
Such investment objectives for the production of electricity from renewable sources referred to hereinabove can be made based on a building permit, once the land is temporarily / definitively removed out of the agricultural circuit and after payment of the legal fees.
Agricultural land of a maximum of 50 ha located outside the build-up area that meets the conditions for the installation of specific equipment for the production of electricity from renewable sources can be used for both agricultural production and electricity production.
However, such dual use is not possible in the case of arable land. In this case, definitive / temporary removal of the land from the agricultural circuit is possible only for the perimeter occupied by the facility for production of renewable energies, the rest of the land remaining in the agricultural circuit.
The temporary removal from the agricultural circuit is granted for a period of 2 years, opened to a well-grounded 2-year extension or if there is a request for definitive removal of the agricultural circuit at the end of the temporary removal period.
Definitive or temporary removal of such lands out of the agricultural circuit is subject to approval by decision of the manager of the Departmental Directorate of Agriculture, after consulting the specialized structure of the Ministry of Agriculture and Rural Development, for surfaces of more than 1 ha.
The notice is issued in 45 days from the registration of the request, failure to reply accounting for tacit agreement.
The approval of withdrawal from the agricultural circuit for the above purposes is subject to the prior consent of the landowners and the approval of the departmental agricultural bodies and the Municipality of Bucharest, if applicable.
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It should be noted that works for the investment projects on lands located outside the build-up area, including in the field of renewable energy, must begin within 5 years from the date on which the land was removed from the agricultural use.
Failure to comply with this requirement will result in the land being automatically returned to agricultural use.
These provisions, enacted under the Law no. 254/2022, will produce effects until 31/12/2026. In the context of debates both at European and national level on increasing energy production capacities, including by use of renewable and low-emission resources, the amendments introduced by the Law No. 254/ 2022 and the Law No. 262/2022 are likely to increase the interest of investors in the energy sector for the purchase / rental of agricultural land located outside the built-up area.
However, this dual system of use of agricultural land in renewable projects is likely to be less attractive, given the fact that, although the operating license issued by ANRE (see art. 13, paragraph 1, letter a) of the Regulation of 2015 for the granting of licenses and authorizations in the electricity sector, approved by the Order no. 12/2015) is valid up to 25 years, these legal changes only apply for 4 years i.e., until 2026.
These legislative changes are linked all the financial support measures aimed at increasing energy efficiency. In this regard, the GEO no. 112 of July 15, 2022, comes with several important provisions on measures aimed at stimulating investments financed by external non-refundable funds in the field of energetic efficiency and renewable energy resources for large companies and SMEs.